STEVEN MITCHELL v. STEVECO CONSTRUCTION LTD., 2022 SKKB 283

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 283 Date: 2022 08 12 Docket: QBG-PA-00031-2022 Judicial Centre: Prince Albert BETWEEN: STEVEN MITCHELL and STEVECO CONSTRUCTION LTD. - and - RESORT VILLAGE OF CANDLE LAKE and CHRIS GATES and HEATHER SCOTT and NICOLE SAWCHUK Counsel: Timothy P. Hawryluk, K.C. for the defendant, Nicole Sawchuk (applicant) Peter A. Abrametz for the plaintiffs (respondents) ___________________________________________________________________________ FIAT HILDEBRANDT J.

August 12, 2022 ___________________________________________________________________________ INTRODUCTION [ 1 ] The plaintiffs, Steven Mitchell and Steveco Construction Ltd., of whom Steven Mitchell is a director and officer, collectively [Steveco], issued a statement of claim on March 8, 2022, naming the Resort Village of Candle Lake [RVCL], Chris Gates, Heather Scott, and Nicole Sawchuk [Ms. Sawchuk] as defendants. Ms. Sawchuk’s statement of defence, dated June 28, 2022, was filed June 30, 2022. As will be discussed further, Ms.

Sawchuk, who practises law in her own firm in Prince Albert, Saskatchewan, was engaged by RVCL in relation to various matters pertaining to Steveco. Steveco, unhappy with the decisions made by the RVCL, has named Ms. Sawchuk in this latest action. [ 2 ] Ms. Sawchuk now applies, pursuant to ss. 42(1.2) (

b) of The Queen’s Bench Act, 1998, SS 1998 c Q-1.01 , to have the requirement that the parties attend mediation postponed until after the hearing and determination of this application. That subsection states: 42 . . .

(1.2) On application by a party to an action or matter, the court may: (

a) exempt the parties from the requirement to attend a mediation session; or

(

b) postpone the requirement to attend a mediation session until a later step in the action or matter on any terms that the court considers appropriate . [ 3 ] More significantly, Ms. Sawchuk also seeks to have the statement of claim struck as against her pursuant to Rules 7-9(1) and 7-9(2)(

a) and (

b) of The Queen’s Bench Rules , on the grounds that the claim discloses no reasonable claim against her and is frivolous, vexatious, and destined to fail. Rule 7-9 states: 7-9(1) If the circumstances warrant and one or more conditions pursuant to subrule (2) apply, the Court may order one or more of the following: (

a) that all or any part of a pleading or other document be struck out ; (

b) that a pleading or other document be amended or set aside; (

c) that a judgment or an order be entered; (

d) that the proceeding be stayed or dismissed.

(2) The conditions for an order pursuant to subrule (1) are that the pleading or other document: (

a) discloses no reasonable claim or defence, as the case may be; (

b) is scandalous, frivolous or vexatious; (

c) is immaterial, redundant or unnecessarily lengthy; (

d) may prejudice or delay the fair trial or hearing of the proceeding; or (

e) is otherwise an abuse of process of the Court.

(3) No evidence is admissible on an application pursuant to clause (2)(a) . [Emphasis added] PRELIMINARY OBJECTIONS [ 4 ] The plaintiffs oppose Ms. Sawchuk’s application, requesting firstly that it be adjourned because Steveco has had a mandamus application pending since March of 2020, which plaintiffs’ counsel suggests would “in large part determine the issues”. Further, the plaintiffs have not yet received statements of defence from the other defendants.

Plaintiffs’ counsel suggests that such may either support or undermine the plaintiffs’ position and they want the opportunity to consider such information. [ 5 ] Regarding the plaintiffs’ mandamus application, which had been launched in reaction to the RVCL’s pursuit of enforcement of a stop work order in Queen’s Bench Chambers, the Saskatchewan Court of Appeal, in Mitchell v Candle Lake (Resort Village), 2021 SKCA 44 [ SKCA Stop Work decision ], noted, at paras. 18-19, that the mandamus application had been adjourned at the request of plaintiffs’ counsel, initially “to a fixed date to permit him to file additional material” and then “ sine die, pending the hearing of this appeal”.

As such, whether or when such application proceeds would be at the behest of the plaintiffs. The SKCA Stop Work decision was rendered March 24, 2021 and the plaintiffs have not pursued the mandamus application in the ensuing 16½ months. Accordingly, Ms. Sawchuk’s application could be left in limbo if it were adjourned contingent upon that application. [ 6 ] Further, in response to questioning by this court as to whom an order of mandamus would be directed, in the event the plaintiffs pursued the application and were successful, Mr.

Abrametz, on behalf of the plaintiffs, acknowledged that the application is against the RVCL. Indeed, such is appropriate as only the RVCL, and not Ms. Sawchuk, would be able to issue a building permit. Therefore, as that mandamus application could not result in a directive against Ms. Sawchuk, even if it were pursued promptly, there are no grounds on which to delay consideration of Ms. Sawchuk’s application. Further, the plaintiffs’ position with respect to the mandamus application is in no way prejudiced by having Ms.

Sawchuk’s matter determined at this juncture. [ 7 ] With respect to the suggestion that this court ought to await the statements of defence of the other parties, Rule 7-9, and particularly sub-rule 7-9(2)(a), limits the scope of what may be reviewed when considering an application to strike pleadings. As such, the document necessary for this court to review is the statement of claim and not other potential statements of defence by other parties. [ 8 ] Further, Ms.

Sawchuk’s counsel submits that, in keeping with Rule 1-3 of The Queen’s Bench Rules , it is appropriate to resolve claims in a timely and cost effective manner. As such, striking the claim, where such is warranted, before further resources are expended is appropriate. [ 9 ] In light of all these factors, the plaintiffs’ preliminary objections are unfounded. Full submissions regarding the substantive aspects of Ms. Sawchuk’s application, from both her counsel and Mr. Abrametz, were presented to me in Chambers on August 9, 2022.

FACTUAL BACKGROUND [ 10 ] The parties are on common ground that on April 3, 2019 the plaintiffs’ industrial shop was destroyed by fire. The building was located in the resort village. Steveco began rebuilding the shop but did not apply for a demolition, building, or development permit prior to commencing with reconstruction.

[ 11 ] As the reconstruction proceeded without permits having been secured, two separate legal proceedings were initiated by the RVCL, including pursuit of a stop work order and a municipal bylaw prosecution. Regarding the stop work order, the RVCL was successful in Chambers in the Court of Queen’s Bench and the plaintiffs’ appeal of that decision was dismissed by the Saskatchewan Court of Appeal in the SKCA Stop Work decision .

The factual background to the plaintiffs’ statement of claim has been detailed by the Court of Appeal in the SKCA Stop Work decision . [ 12 ] In the SKCA Stop Work decision , the Court of Appeal found that the plaintiffs, if they felt there was a substantive legal basis, were obligated to appeal the stop work order when it was issued. Failure to do so left the plaintiffs bound to that stop work order. The Court of Appeal, at paras. 76-78 of the decision, commented on the plaintiffs’ tactics of attempting collateral attacks.

These comments provide perspective on the current action as well, in that the plaintiffs in this case have named various employees/agents, as well as RVCL’s legal counsel, Ms. Sawchuk, as additional defendants along with the municipal entity RVCL, which entity was couched with decision-making responsibility: [76] By his own admission, Mr. Mitchell did not have a building permit when the Order was issued.

He eschewed the appeal mechanism in an apparent standoff with the Village; yet, almost a year after he began the construction of his new building, chose to attack the validity of the Order in the context of the s. 23 proceedings. I see no tenable basis as to why Mr. Mitchell could not have resorted to the statutory appeal mechanism if he truly thought the Order was invalid . [77] … Permitting Mr.

Mitchell to attack the validity of a s. 17 order in the context of further enforcement proceedings would, in my view, undermine the integrity of the administrative system and allow him to circumvent the appropriate review mechanisms put in place by the Legislature.

As discussed above, this could have serious ramifications for the local authority, the general public and the building owner alike. [78 ] I find most of the factors weigh in favour of a conclusion that the Legislature did not intend for a person to be able to collaterally attack the validity of a s. 17 order in the context of subsequent proceedings to enforce compliance with it. … [Emphasis added] [ 13 ] Regarding the bylaw prosecution, the plaintiffs were convicted after a trial in Provincial Court. The appeal of that decision to the Court of Queen’s Bench was dismissed.

A further appeal to the Saskatchewan Court of Appeal was also dismissed in Mitchell v Candle Lake (Resort Village) , 2021 SKCA 128 . [ 14 ] As noted earlier, the plaintiffs commenced a mandamus application, desiring that the RVCL be ordered to issue the plaintiffs a building permit. That application, however, was adjourned sine die at the request of plaintiffs’ counsel and has not been re-ignited. [ 15 ] The plaintiffs now seek damages for, inter alia , alleged bad faith and abuse of public office on the part of all named defendants.

ISSUES [ 16 ] The preliminary objections having been addressed, four issues remain for consideration of this court:

a) Is it appropriate to postpone mediation?

b) Ought the statement of claim be struck, as against Ms. Sawchuk, as disclosing no reasonable cause of action, pursuant to Rule 7- 9(2)(a)?

c) Ought the statement of claim be struck, as against Ms. Sawchuk, as being frivolous or vexatious, pursuant to Rule 7-9(2)(b)?

d) What, if any, costs should be ordered? [ 17 ] For the reasons which follow, the statement of claim as against Ms. Sawchuk is struck and her participation in any mediation is not warranted. ANALYSIS

a) Is it appropriate to postpone mediation? [ 18 ] Pursuant to ss. 42(1.2) (

b) of The Queen’s Bench Act, 1998 , quoted earlier, this court has discretion to postpone the mandatory mediation process, which generally takes place at the close of pleadings. By ss. 42(1.2)(a), a party may be exempted from the mediation process.

As Rule 1-3 of The Queen’s Bench Rules recognizes, addressing matters in a timely and cost effective manner is appropriate. [ 19 ] Consideration of an application to strike a statement of claim, particularly where such is brought in a timely way, is appropriately undertaken prior to the mediation so that neither the applicant nor the other parties incur additional legal fees in preparing for and attending the mediation. Knowing who remains involved in the action prior to the mediation is of benefit to all concerned. [ 20 ] Ms.

Sawchuk commenced her application promptly after the filing of her statement of defence. As noted by plaintiffs’ counsel, other statements of defence have not yet been received. Further, this decision has not been delayed. Thus, postponement of the mediation pending determination of Ms. Sawchuk’s application by this court would result in no delay at all. However, this court is mindful of Steveco’s propensity for litigation, including appeals.

Accordingly, should the plaintiffs entertain that process, postponing the mediation for all of the parties pending any determination on appeal could potentially result in a bit of a delay.

[21] However, if this court employs ss. 42(1.2)(a), this application will result in no delay of the mediation respectingthe other parties and will not be prejudicial to the plaintiffs. In light of my decision, discussed below, that the statement of claim asagainst Ms. Sawchuk must be struck, I consider that the appropriate order is pursuant to ss. 42(1.2)(

a) of The Queen’s Bench Act, 1998,whereby the mediation process may proceed in the ordinary course among those parties who remain in the litigation, unless otherwiseordered in relation to applications applicable to those respective parties, but Ms. Sawchuk, in any event, is exempted from the mediationprocess in this action.

b) Ought the statement of claim be struck, as against Ms. Sawchuk, as disclosing no reasonable cause of action, pursuant toRule 7-9(2)(a)? [22] On behalf of Ms. Sawchuk, it is submitted that the allegations found in the plaintiffs’ statement of claim discloseno cause of action known in law. Counsel notes that there is no cause of action which permits the plaintiffs to sue an adverse counsel,that Ms. Sawchuk is protected by absolute privilege, and that Ms.

Sawchuk was not a public officer. [23] When considering whether to strike a claim, the court in Country Plaza Motors Ltd. v Indian Head (Town),2005 SKQB 442, 272 Sask R 198, noted, at para. 14, that the purpose of Rule 7-9 (former Rule 173) “is to save the cost, time andinconvenience of dealing with seriously defective or unmeritorious claims”.

In an earlier decision, Sagon v Royal Bank of Canada(1992), (SK CA), 105 Sask R 133 (CA), the Saskatchewan Court of Appeal had considered the case law and noted, atpara. 16, the relevant principles in considering an application to strike: [16] In determining whether a claim should be struck as disclosing no reasonable cause of action, the test is whether, assuming theplaintiff proves everything alleged in his claim, there is nevertheless no reasonable chance of success, or to put it another way, noarguable case.

The court should exercise its jurisdiction to strike on this ground only in plain and obvious cases and where the court issatisfied that the case is beyond doubt: … The court may consider only the statement of claim, any particulars furnished pursuant todemand, and any document referred to in the claim upon which the plaintiff must rely to establish his case: … [24] In reviewing the statement of claim, para. 5 notes that “Nicole Sawchuk was the legal representative of theDefendant, Resort Village of Candle Lake at all times material”. Ms.

Sawchuk is then listed, along with all of the other defendants, inpara. 7, as those who “served the Plaintiff with a stop work order in October 2019 because the Plaintiff did not have a building permitissued by the Defendant, Resort Village of Candle Lake”. In para. 15, reference is made to a letter having been remitted to Ms. Sawchukin February of 2020, asking whether a building permit and development permit had been issued, to which Ms. Sawchuk “did not reply”.However, the actual allegations against Ms. Sawchuk are found at paras. 18-20 of the statement of claim: 18.

The Plaintiff states that the Defendants, Chris Gates, Heather Scott and Nicole Sawchuk have acted in bad faith and abused theirpublic office. The Plaintiff makes this allegation in light of the fact that the Defendants knew that the Plaintiff has done everythingrequired to be issued a building permit but have refused to issue him a building permit and refused to provide a specific reason for thefailure to issue a building permit. 19.

The Plaintiff states that the Defendants, Chris Gates, Heather Scott and Nicole Sawchuk knew in December 2019 that the Plaintiffshould be issued a building permit and that their failure to do so is bad faith and constitutes abuse of public office. The Plaintiff statesthat the facts enumerated above in this Statement of Claim establish the basis for the abuse of public office committed by the Defendantsas alleged by the Plaintiff. 20.

The Plaintiff states that not only did the Defendants, Resort Village of Candle Lake, Chris Gates, Heather Scott and Nicole Sawchukabuse public office by failing to issue a building permit, they further abused their public office by applying to the Court of Queen’sBench for a demolition permit and a stop work order which applications were served upon the Plaintiff on or about March 9 of 2021. [25] These are allegations that Ms.

Sawchuk acted in bad faith and abused her public office by refusing to issue abuilding permit to the plaintiffs and by applying to the Court of Queen’s Bench for a demolition permit and stop work order. On behalfof Ms. Sawchuk, it is submitted that neither of these allegations constitutes a cause of action known in law. Ms. Sawchuk owed no duty to the plaintiffs [26] Firstly, the plaintiffs are not entitled to bring an action against Ms. Sawchuk merely because they aredissatisfied with the result achieved in the previous court applications.

Their statement of claim must be predicated on a legallyrecognized cause of action, which would render Ms. Sawchuk potentially liable to the plaintiffs because of a legal duty arising throughtort, contract, statute, or the like. The plaintiffs have not referenced any foundation for a cause of action which permits them to sue Ms.Sawchuk, who was adverse counsel.

The law is well settled that a lawyer owes no legal duty to a party opposite. [27] Indeed, in Lawrence v Sandilands, 2003 BCSC 211, the British Columbia Supreme Court noted, at paras. 77, 79and 80: [77] It is well established that in the course of counsel’s representation of his or her clients interests, it is to be expected that “…much may be done that is intentionally and necessarily directed toward injuring the opposing party’s interests.” (Crooks v.Manolescu, [1995] B.C.J.

No. 17 (BCSC) at paragraph 10). . . . [79] While a solicitor may owe an ethical duty to the court to be candid and fair, the only party to whom a solicitor owes an actionableduty is his or her client (Jensen v MacGregor (1992), (BC SC), 65 B.C.L.R. (2d) 224 at p. 228 (BCSC)). [80] The court in Jensen found that in the absence of a contractual obligation and any duty of care owed between counsel for oneparty and the party adverse in interest, there was no recognizable cause of action, no plausible argument and no triable issueraised on the pleadings.

[Emphasis added] [28] The British Columbia Court of Appeal, in Young v Borzoni, 2007 BCCA 16 at para 52, 277 DLR (4th) 685,quoting from Crooks v Manolescu, [1995] BCJ No 17 (QL) (BCSC), found it “patently absurd” that the plaintiff’s position in that casewas “tantamount to an assertion that all counsel who represent litigants owe a fiduciary duty or a duty of care to the other party to thelitigation”.

Such a duty, the court noted, was impossible, given “the very nature of a solicitor’s duty to her own client”. [29] The Ontario decision of Davidoff v Paderewski, 2020 ONSC 1171 at para 22 [Davidoff], confirms this view.The court in Davidoff relied upon older decisions, which had also been cited in Brignolio v Desmarais, Keenan [1995] OJ No 3499 (QL)(Ont Ct

J) at para 7: 7 It will thus be seen that the major claim against Mr. Keenan is that he was negligent and a second claim is that he was unethical andfailed to meet the moral standards of the bar. The question of whether or not a solicitor is liable in negligence to the opposite party in alitigation came before the Divisional Court of this province in George Cluthe Manufacturing Co. Ltd. v. ZTW Properties Inc. et al (1995) (ON SC), 23 O.R. (3d) 370. At 380 the court turned its attention to negligence as follows: The plea of negligence is not valid in law and should be struck out.

There is no authority to support the proposition that alitigant, or his solicitor, owes a duty of care to an opposing party. Ordinarily, to state the obvious, the interests of opposinglitigants are in conflict. I adopt the following statements in English authorities cited by Mr.

Rolls: The proposition that a duty of care is owed by one litigant to another and can be superimposed on the checks and safeguardsthat the legal system itself provides is, to my mind, conceptually odd. (Per Scott J. in Business Computers International Ltd. v.Registrar of Companies, [1987] 3 All E.R. 465 at p. 472. [Emphasis added] [30] In Saskatchewan, in the case of Babatunde v Bank of Canada, 2017 SKQB 62 [Babatunde], where a self-represented litigant had sued a variety of banks, the RCMP who had investigated the plaintiff on allegations of forgery and fraud, as wellas the lawyer and law firm who had acted against him in a prior action, the court noted, at paras. 90-91: [90] It is a further significant attribute of this matter that the defendant lawyers owed no duty of care to the plaintiff as theprinciple of “duty of care” is founded in Canadian jurisprudence.

Throughout, the defendant lawyers acted for the defendantBank of Canada. This was a defendant completely adverse in interest to the interests of the plaintiff. A lawyer must find herselfor himself in a position of being able to act fearlessly when advocating on behalf of a client in a court proceeding without thethreat of liability stemming therefrom. [91] I am unable to see any

interpretation of the factual scenario before me which would suggest that in any way the defendant lawyersowed some manner of duty of care to the plaintiff or that it could be said in some fashion to have a duty to inferentially have due regardto the rights of the plaintiff in advancing the litigation. The principle in my view is clear that no duty of care arises between alitigant and counsel for the other side of the litigation. [Emphasis added] [31] No case authorities were cited by the plaintiffs.

Accordingly, this court was provided with not even a hint of abasis on which this principle—that a lawyer owes no duty to an opposing party—ought not to be honoured in this case. [32] Further, a review of the facts alleged in the statement of claim reveals no basis on which a legal relationship orduty between Ms. Sawchuk and the plaintiffs may even be inferred. Nor has such a duty been directly pleaded. While it is alleged, asnoted earlier, that Ms. Sawchuk failed to respond to a letter written on behalf of the plaintiffs, such does not give rise to a cause of actionagainst her, albeit it might, as Mr.

Abrametz suggests in his brief, potentially be a professional conduct matter, depending upon thecircumstances. However, Ms. Sawchuk’s legal duty was solely to her client, the RVCL. [33] Accordingly, with Ms. Sawchuk having no duty to the plaintiffs on which an action could be founded, thestatement of claim discloses no reasonable cause of action against her and must be struck. [34] This, however, is not the only ground on which the claim against Ms. Sawchuk must be struck, although suchwould be sufficient to fully determine the application.

Nonetheless, the doctrine of absolute privilege applies to prevent the claim in thiscase. Ms. Sawchuk is protected by absolute privilege [35] A lawyer cannot be sued by an opposing party for the lawyer’s work in the scope of representing her client in acourt proceeding. In Davidoff, an action was commenced against a lawyer for alleged malicious prosecution in a previous civil actionregarding defamation. The lawyer applied for

summary judgment to strike the claim, with one of the grounds being that the doctrine ofabsolute privilege barred the claim. [36] At paras. 19-20 of Davidoff, the court confirmed this doctrine in relation to the lawyer, Rachel Goerz: [19] The defendant Goerz submits that it is well-established that the doctrine of absolute privilege applies to bar all tort claims based oncommunication that take place during, incident to, and in furtherance to a court proceeding. The privilege extends to any action, howeverframed, and is not limited to actions for defamation (see Cook v. Milbourne, 2018 ONSC 419, paras. 17 and 18).

[20] This absolute privilege is supported by sound policy reasons. If a party can be sued for its conduct of a civil action, therecould be no end to the litigation. A lawsuit could be commenced based on the second action and then again on the third action. [21] On the basis of that privilege, no claim lies against Goerz or Paderewski. [Emphasis added] [37] The above-noted reasoning in Davidoff was directly applied in an unreported decision of this court, Heffernan vCity of Prince Albert (15 July 2020) Prince Albert, QBG-PA-00325-2019 (Sask QB), at paras. 23-25.

In that case the plaintiff hadalleged that he had been constructively and wrongfully dismissed from his employment by the Prince Albert Chief of Police “with thehelp of Mitchel Holash”, the lawyer for the employer. At para. 27 Acton J. stated that, “The simple fact of representing an employerclient does not expose an employer’s lawyer to liability”. [38] There is a societal and public policy interest in ensuring that lawyers are free to advise their clients without fearof being sued by others.

This was emphasized in Succar v Wawanesa Mutual Insurance Co. (2006), (ON SC), 84 OR(3d) 272 (Ont Sup Ct) at para 18, when considering whether to permit a plaintiff to add his insurer’s law firm, Bell Temple, as a party: [18] In exercising my discretion, the overarching consideration must be that of public policy. In my opinion, adding Bell Templeas a party based upon the allegations in the proposed Statement of Claim would undermine time honoured principles of solicitor-client privilege and solicitor-client relations. Bell Temple owes no duty of care to the Plaintiff.

Rather, Bell Temple's duty is toprotect its client within the ethical mandates of the Law Society of Upper Canada: see Geo. Cluthe Manufacturing Co. v. ZTW PropertiesInc. (1997), (ON CA), 38 O.R. (3d) 318 (Ont. C.A.); Simpson v. Gafar, [2000] O.J. No. 3352 (Ont. Master)and Brignolio v. Desmarais, Keenan & Robert, [1995] O.J. No. 3499 (Ont. Gen. Div.). It follows that there can be no viable claimagainst a lawyer for interference with contractual relations because a lawyer offers legal advice to a client as to their rights inrespect of the contract.

To hold otherwise would effectively mean that lawyers would not be at liberty to freely advise theirclients with respect to their rights and obligations without fear of being sued by a third party to whom they owe no duty:see 1198728 Ontario Inc. v. Tally Capital Ltd. (1997), [1998] O.J. No. 23 (Ont. Gen. Div.). [Emphasis added] [39] On behalf of the plaintiffs there was, again, nothing submitted which would suggest any grounds on which toderogate from this doctrine of absolute privilege. Ms.

Sawchuk was at all material times acting for and advising her client, the RVCL,which was in conflict with the plaintiffs and their interests. This, too, supports the conclusion that the statement of claim discloses noreasonable cause of action against Ms. Sawchuk and must therefore be struck. There is, however, a third basis for that conclusion. Ms. Sawchuk was not a public officer [40] The statement of claim alleges “abuse of public office” as against Ms. Sawchuk as well as the RVCL, the villagebuilding inspector, Chris Gates, and the village administrator, Heather Scott.

However, without drawing any conclusions regarding theroles of either Chris Gates or Heather Scott, it is apparent that Ms. Sawchuk cannot be considered as a public officer. As such, there canbe no cause of action for abuse of public office against her. [41] The requirements of a cause of action for abuse of public office were considered in Rodgers v Sechelt (District),2015 BCSC 687 at para 17. Describing the tort of misfeasance in public office, the court said: [17] The tort can be broken down into five essential ingredients: (

a) the defendant must be a public officer; (

b) the impugned conduct must be an exercise of power in that office; (

c) there must be a state of mind of the public official that is either targeted malice, or he or she must have acted in the knowledge of, orwith reckless indifference to, the legality of his or her act in the knowledge of, or with reckless indifference to, the probability of causinginjury to the plaintiff; (

d) there must be sufficient interest in the plaintiff to found a legal standing to sue; and (

e) the exercise of power must have caused loss to the plaintiff: … [42] Author G.H.L. Fridman, in The Law of Torts in Canada, 3rd ed. (Toronto: Carswell, 2010) emphasized theelement of being a public officer, at page 843: Misfeasance in a public office, as a uniquely public law tort, can be claimed only against public officers . . . The tort of misfeasance in apublic office requires the commission of the wrongful act by a public officer acting, or purporting to act, in the exercise of his or herpublic powers . . . It is not sufficient merely to be a public employee; one must hold an “office”.

As one author has explained, a publicoffice entails things like tenure, duration and payment, and that the claim arise out of the exercise of statutory powers or ancillarycommon law powers. [43] In this case, the parties are on common ground that Ms. Sawchuk was merely the “legal representative” of theRVCL, as the plaintiffs described her at para. 5 of their statement of claim. At paras. 2 and 3 of her statement of defence, Ms. Sawchuk isnoted to be “a lawyer who at all material times practiced law with the Nicole A.

Sawchuk law firm in Prince Albert, Saskatchewan” andwas “acting as legal counsel to the Resort Village of Candle Lake in regard to various legal proceedings involving the Resort Village ofCandle Lake, and opposite Steven Mitchell and his company Steveco Construction Ltd.” This is not a statutory office. Nor is thereprovision in The Municipalities Act, SS 2005, c M-36.1 whereby a lawyer in private practice, who is engaged to advise a municipality, is

transformed into a public officer. [44] On behalf of the plaintiffs, ss. 354(

b) and ss. 114(2) of The Municipalities Act were cited. However, theseprovisions do not support the plaintiffs’ position. Rather, they support the view that Ms. Sawchuk was not a public officer. Further, thesuggestion by counsel for the plaintiffs that these specific provisions ought to be extrapolated to apply to non-employee lawyers engagedby a municipal entity has no foundation in the statute or principles of

interpretation. [45] The sections state: 354 In this Division: . . . (b) “municipal officer” means all employees of the municipality, of any committee or other body established by council, of a publicutility board established by council pursuant to subsection 33(2), and of a controlled corporation of a municipality; and 114(2) Notwithstanding subsection 111(3), the appointment of a person to the position of full-time municipal solicitor may be made,suspended or revoked only if the majority of council vote to do so, unless otherwise delegated by council. [Emphasis added] [46] The plaintiffs have not pleaded any particulars which demonstrate that Ms.

Sawchuk was a public officer. Ms.Sawchuk was, and is, clearly not an employee of the RVCL and she is certainly not a full-time municipal solicitor. Hers is a private legalpractice, of which the RVCL is but one of her clients. [47] Counsel for the plaintiffs also relies upon a 2004 paper written by Neil Robertson, Q.C., as he then was CitySolicitor for the City of Regina—now Robertson J. Again, however, how this might assist the plaintiffs is an enigma. In the paper, “TheRole of Public Counsel”, prepared for a Saskatchewan Legal Education Society Inc. seminar, there is emphasis on the rule of law.Notably, in the

section entitled “Duty of the Public Sector Lawyer”, the author notes, at page 9: Counsel must be clear in their own mind as to who is the client. The lawyer’s duty should be to promote and protect the legal interests ofthe client. If the client is the corporation, or other entity, then that duty must preclude acting against the interest of the client. … [48] This accords with the case law discussed above, at paras. 26-33 of this decision, as it underscores Ms.Sawchuk’s duty to the RVCL, with no duty to the plaintiffs. [49] Ms. Sawchuk cannot be considered as a public officer.

As such, any allegation that she abused her public officehas no hope of success and must be struck. [50] In light of all the foregoing, pursuant to Rule 7-9(2)(a), as the statement of claim discloses no reasonable causeof action against Ms. Sawchuk, it must be struck vis-à-vis this defendant.

c) Ought the statement of claim be struck, as against Ms. Sawchuk, as being frivolous or vexatious, pursuant to Rule 7-9(2)(b)? [51] The above conclusions pursuant to Rule 7-9(2)(

a) are sufficient to determine Ms. Sawchuk’s application.However, she has also claimed that the statement of claim ought to be struck pursuant to Rule 7-9(2)(

b) as it is frivolous and vexatious. [52] In Wilchuck v Westfield Twins Condominium Corp., 2020 SKQB 40 at para 28, Mitchell J. stated that “Apleading will qualify as ‘frivolous’ if it is plain or obvious or beyond reasonable doubt the claim it advances is groundless and cannotsucceed”. In light of the well-established principles discussed in the consideration of Rule 7-9(2)(a), the plaintiffs’ claim as against Ms.Sawchuk satisfies this test. It is apparent that the claim against this defendant would fail. [53] Elson J., in R v Boxrud, 2014 SKQB 221, 450 Sask R 147, discussed the terms found in Rule 7-9(2)(

b) at somelength. His comments, at paras. 37-40, are of assistance: [37] In the consideration of this issue, both defence counsel referred the court to the oft-quoted decision of the Saskatchewan Court ofAppeal in Sagon v. Royal Bank of Canada (1992), (SK CA), 105 Sask. R. 133, [1992] S.J. No. 197 (QL) (C.A.). Inthat decision, Sherstobitoff J.A. described the nature of an application to strike under former Rule 173(

c) and (e) (now Rule 7-9(2)(b)and (e)), distinguishing it from an application to strike a pleading for failing to disclose a reasonable cause of action or defence (paras. 18and 19): [18] Striking out an entire claim on the ground that it is frivolous, vexatious or an abuse of process of the court is based on an entirelydifferent footing. Instead of considering merely the adequacy of the pleadings to support a reasonable cause of action, it may involve anassessment of the merits of the claim, and the motives of the plaintiff in bringing it.

Evidence other than the pleadings is admissible.Success on such an application will normally result in dismissal of the action, with the result that the rule of res judicata will likely applyto any subsequent efforts to bring new actions based on the same facts. Odgers on Pleadings and Practice, 20th ed. says at pp. 153-4: If, in all the circumstances of the case, it is obvious that the claim or defence is devoid of all merit or cannot possibly succeed, an ordermay be made. But it is a jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases.

Its exercise wouldnot be justified merely because the story told in the pleadings is highly improbable, and one which it is difficult to believe could beproved. [19] Finally, a separate mention should be made of the power of the court to prevent abuse of its process, a power which is

inherent as well as conferred under Rule 173. Bullen & Leake defines the power as follows at pp. 148-9: The term 'abuse of the process of the court' is a term of great significance. It connotes that the process of the court must be carried outproperly, honestly and in good faith; and it means that the court will not allow its function as a court of law to be misused but will in aproper case, prevent its machinery from being used as a means of vexation or oppression in the process of litigation.

It follows that wherean abuse of process has taken place, the intervention of the court by the stay or even dismissal of proceedings, 'although it should not belightly done, yet it may often be required by the very essence of justice to be done. The term 'abuse of process' is often used interchangeably with the terms 'frivolous' or 'vexatious' either separately or moreusually in conjunction. [footnotes omitted] [38] The observation in Sagon, that the terms “abuse of process”, “frivolous” and “vexatious”, now contained within Rule 7-9(2)(

b) and(e), have been used “either separately or more usually in conjunction”, has been borne out by a number of subsequent decisions. Thedecision of Grotsky J., in Ross v. Eastbourne Investments Ltd. (1994), (SK KB), 124 Sask.R. 97, [1994] S.J. No. 398(QL) (Q.B.), is an example of a case where the terms were used in conjunction. In that case, it was determined that an action known bythe plaintiff to be without merit, and which was purporting to found a lis pendens, was so devoid of merit that it was conjunctivelydescribed as frivolous, vexatious and an abuse of the court’s process.

In an earlier decision, Kichula v. Farm CreditCorp. (1991), (SK KB), 95 Sask. R. 245, [1991] S.J.

No. 339 (QL) (Q.B.), the same judge sought to give thisconjunctive phrase some definition by describing the burden borne by a party who asserts that a pleading be struck on this basis.Specifically, at para. 18 of the decision, Grotsky J. wrote the following: 18 Where, as here, the applicant asserts that the statement of claim ought to be struck out as being frivolous, vexatious and an abuse ofthe process of this court, the onus lies upon it to establish that the alleged cause of action is such that no reasonable person could treat itas bona fide and contend that he was entitled to approach the court with such a complaint.

MacDonald v. Pier (SCC),[1923] S.C.R. 107. [39] This was then followed, in the next paragraph, with a specific definition for “vexatious” litigation: 19 Vexatious litigation has been referred to as a civil action instituted for an ulterior motive other than to enforce a true legal claim, ormaliciously without probable cause. Guilford Industries Ltd. v. Hankinson Management Services Ltd. (1973), (BCSC), 40 D.L.R. (3d) 398 (B.C.S.C.); Jones v. Swift Canadian Co. (1922), (MB KB), 68 D.L.R. 751 (Man.

K.B.).[Emphasis in original] [40] Separate identification of relevant terms occurred in the decision of Ryan-Froslie J. (as she then was) in Chisum Log Homes &Lumber Ltd. v. Investment Saskatchewan Inc., 2007 SKQB 368, 303 Sask. R. 174. In para. 133, the term “frivolous” was identified as aclaim or defence which is “groundless and pursued for the purpose of delay or embarrassment”, while the term “vexatious” wasidentified as a claim or defence which is “instituted maliciously and without cause”.

The phrase “abuse of process” was identified as astep taken which is “vexatious or oppressive”. [Emphasis added] [54] In this case, the court must be concerned with the vexatious nature of the claim and the use of court time andresources to pursue a multiplicity of claims on related matters, including the two matters which have already gone to the SaskatchewanCourt of Appeal. In his submissions in Chambers, counsel for the plaintiffs noted that the SKCA Stop Work decision was “notdeterminative of the issue”.

The basis for this suggestion is unclear. [55] Further, no explanation was proffered for why the mandamus application has been left in abeyance, a matterwhich is entirely within the plaintiffs’ control. The focus now appears to be on attempting to punish individuals, along with the RVCL,as the plaintiffs allege they have been victimized. Including Ms. Sawchuk as a defendant in no way advances the plaintiffs’ position. Theplaintiffs’ dispute is with the municipal entity, the RVCL. It is that body which had the authority to make decisions and did so. Theplaintiffs are not prejudiced by the removal of Ms.

Sawchuk from the lawsuit as their claim against her is without merit and itscontinuation would only add to the cost and complexity of the litigation. [56] Accordingly, while perhaps unnecessary to do so, the claim must also be struck as frivolous and vexatiouspursuant to Rule 7-9(2)(b).

d) What, if any, costs should be ordered? [57] On behalf of Ms. Sawchuk, costs in the amount of $3,000 are claimed in connection with this application. Hercounsel notes that “Parties who have successfully struck claims brought by self-represented plaintiffs have previously been awardedsimilar awards of costs”. Indeed, this was the amount ordered in Babatunde. [58] Counsel for Ms. Sawchuk further notes that the plaintiffs are not self-represented and therefore ought to haveknown that their claim was without prospect of success as against Ms. Sawchuk.

As such, it is submitted that “the only rationalconclusion is that [the plaintiffs] proceeded, only for the purpose of putting Sawchuk to cost and effort”. Given the repeated submissionsby counsel for the plaintiffs that they were victims and that somehow Ms. Sawchuk’s duty—albeit her client was the RVCL—extendedto all those living within the resort village, the suggestion of Ms. Sawchuk’s counsel may well be meritorious, that this action by theplaintiffs is intended for purposes of punishment. [59] However, it is not necessary for me to consider the motivation.

Sufficient justification for such an award of costsis found in Ms. Sawchuk’s full success on this application and the parity of the costs requested with other like decisions. Considerableeffort on the part of her counsel was required in connection with both the written and oral submissions. A significant award is alsoappropriate to emphasize that suing the lawyer for the opposite party is not appropriate, no matter how aggrieved one may feel.

[ 60 ] Accordingly, an award of costs in the amount of $3,000 is appropriate. ORDER [ 61 ] For the reasons outlined in the foregoing, I make the following order: a. Pursuant to ss. 42(1.2) (

a) of The Queen’s Bench Act, 1998 , the defendant, Nicole Sawchuk, is, in any event, exempted from the mediation process in this action and, unless otherwise ordered in relation to applications applicable to the other respective parties, the mandatory mediation process may proceed in the ordinary course among those parties who remain in the litigation. b. Pursuant to Rule 7-9(2)(

a) of The Queen’s Bench Rules, as it discloses no reasonable cause of action, the statement of claim is struck as against the defendant, Nicole Sawchuk, and she is removed as a defendant in this action. c. Pursuant to Rule 7-9(2)(

b) of The Queen’s Bench Rules, as it is frivolous and vexatious, the statement of claim is struck as against the defendant, Nicole Sawchuk, and she is removed as a defendant in this action. d. The plaintiffs, Steven Mitchell and Steveco Construction Ltd., shall forthwith pay to the applicant, Nicole Sawchuk, the costs of this application, which I set at $3,000. J. B.R. HILDEBRANDT